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finding a violation of K.S.A. § 8-133 by license-plate bracket which obscured part of the state name, regardless of the trooper's knowledge of the state from having recognized its motto, citing State of Kansas v. Hayes, 8 Kan.App.2d 531, 660 P.2d 1387
Summary of this case from U.S. v. Orduna-MartinezOpinion
Case No. 03-10050-01,-02-WEB
May 23, 2003
MEMORANDUM AND ORDER
This matter came before the court on May 19, 2003, for an evidentiary hearing on the defendants' motion to suppress evidence. The court took the motion under advisement at the conclusion of the hearing. For the reasons that follow, the court concludes that the motion to suppress should be denied.
A videotape of the traffic stop was marked as Government's Exhibit 3 and was played at the suppression hearing. Although Exhibit 3 was not offered at hearing, the court upon its own motion, and without objection, hereby admits Government Exhibit 3 and directs that it be made a part of the record.
I. Facts.
The court finds the following facts from the evidence presented at the hearing. On March 10, 2003, Trooper John D. Rule of the Kansas Highway Patrol was driving his marked patrol car eastbound on Interstate 70 in Ellis County, Kansas, when he came upon a green Chevy pickup truck also traveling east. Rule noticed that the rear license plate of the truck had a bracket around it that obscured all but a very small portion of the word "Georgia" at the top part of the plate. Although the word "Georgia" was not legible because of the bracket, Rule knew from prior experience that this was a Georgia tag because there was a picture of a peach in the middle of the tag. Aside from the name of the issuing state, the numbers and letters on the plate were otherwise visible. See Govt. Exh. 2.Rule believed that the driver of the truck was violating K.S.A. § 8-133, which provides in part that "[e]very number plate shall at all times be securely fastened to the vehicle to which it is assigned . . . in a place and position to be clearly visible, and shall be maintained free from foreign materials and in a condition to be clearly legible." Violation of this provision is a misdemeanor. See K.S.A. § 8-149. Rule has stopped vehicles in the past for such violations. Rule pulled his vehicle into the left-hand passing lane along side the truck and glanced over at the occupants. He could see two men in the truck. At the suppression hearing, defense counsel suggested that the Trooper decided to stop the vehicle because he could see that the occupants were Hispanic. The Trooper denied this. He testified that the stop had nothing to do with race and that he does not remember whether he could tell the race of the occupants prior to the stop. The court finds the officer's testimony to be credible. There is no evidence that race played a factor in the Trooper's decision to stop the vehicle.
Aside from an absence of evidence that race played any factor in the stop, the court notes that the tinted windows on the defendants' pickup truck make it unlikely that the Trooper could determine the race of the occupants when he briefly pulled alongside the truck.
At about 11:50 a.m., Rule pulled in behind the pickup truck and made a traffic stop. He turned on his emergency lights, which activated a videotape camera system in the patrol car. Rule got out of his car and approached the driver's side of the pickup. As he did so, he reached to a device on his belt and turned on a wireless microphone that he wore on his uniform. When he did so, a letter "M" automatically appeared on the videotape to indicate that the microphone was turned on. Some of the subsequent conversation between Rule and the defendants is audible on the tape. The sound is of generally poor quality, however, and frequent noises from road traffic obscures much of the conversation. Additionally, the Trooper's microphone apparently quit working at some point during the stop.
The date and time stamp appearing on the videotape of the traffic stop are incorrect.
Rule approached the driver and asked to see his license. The driver, defendant Daniel Dominguez, indicated that he did not have one. Rule asked for some other form of identification, but the defendant said he did not have any. Rule was immediately suspicious of the driver's lack of identification and was in the process of directing the two occupants to step out of the truck when the passenger, later identified as Daniel's brother Abraham Dominguez, began talking to Rule. Abraham appeared to speak somewhat better English than Daniel. Rule conversed with both defendants. Rule speaks a little bit of Spanish, and he attempted to ask the driver where he was going by stating, "Donde va?" Daniel Dominguez initially indicated, in English, that they were going to Oklahoma City, but subsequently said they were going to Georgia. When Rule asked whose truck it was, Daniel said it was his brother's. Rule asked for the paperwork on the truck, and Daniel produced a registration slip in the name of Gumercindo Dominguez, as well as a Florida driver's license in the name of Daniel Dominguez. Rule expressed surprise that Daniel had a driver's license because he had previously indicated he did not have one. One of the defendants told Rule they had just been to visit their mother in Denver, but they could not tell him in what part of Denver she lived. In response to Rule's questions, they said they did not have her address or her phone number, and they could not explain how they had found her house. Rule testified that the defendants appeared to be much more nervous than was typical for a routine traffic stop. At times there was a bit of a language barrier in Rule's communications with the defendants, and he sometimes had to repeat his questions, but for the most part the defendants appeared to understand Rule and their answers were responsive to his questions. At some point while talking to the defendants, Rule noticed an odor of air freshener coming from the truck. The only luggage he could see were two small gym bags, which he thought was unusual for a long-distance trip. Trooper Rule informed the defendants that he stopped them because of the bracket obstructing their license plate.
The Superseding Indictment identifies this defendant as "Miguel Mesina a/k/a Daniel V. Dominguez." At the suppression hearing, the defendant testified that his true name was Daniel Dominguez, although he conceded having used the name "Miguel Mesina" on a prior occasion. For purposes of this order, the court will refer to this defendant as Daniel Dominguez.
Rule returned to his patrol car and began to write up a warning citation. He radioed dispatch for a "Triple I" check on Daniel Dominguez, using the date of birth on the defendant's driver's license. He also ran the license plate and the registration. At some point while he was waiting, Rule radioed for a backup officer. The license plate and registration came back okay. The dispatcher informed Rule that a Daniel Dominguez with the date of birth provided by Rule was listed in the Triple I index (indicating a prior arrest), but computer problems prevented the dispatcher from accessing the records. After completing his paperwork, Rule returned to the pickup truck. As he did so, he checked to see that his microphone was still on. Although the microphone was in fact on, it stopped recording at that point. Defense counsel suggested that Rule might have actually turned the microphone off, and they note that in a prior case a judge of this court admonished Trooper Rule and his partner to record the entirety of a traffic stop once they started recording. The evidence in this case, however, shows that the Trooper in fact had the microphone turned on at all relevant times. The "M" on the videotape indicating that the microphone was in the "on" position remained on throughout the stop after Rule turned it on initially. Moreover, although the audio stopped recording when Rule returned to the truck to talk to the defendants, there are intermittent portions of recorded audio on the tape thereafter, particularly when Trooper Rule was bending or stooping around the truck. This indicates there was likely a "short" or bad connection in the microphone that caused a malfunction.
Trooper Rule gave Daniel Dominguez back his driver's license and registration, as well as a warning citation for having an obstructed license tag. Rule told the defendants to have a safe trip and momentarily stepped back from the truck and waved, as if to indicate that he was finished. He then returned to the driver's window and asked the defendants if he could ask them a couple of questions. One or both of the defendants said yes. Rule asked whether they were carrying any drugs, weapons, or large amounts of cash. Daniel Dominguez said no. Rule then asked in English if it would be all right if he searched their car. When the defendants hesitated, Rule followed up, in Spanish: "Puedo buscar su carro por drogas?" (Literally, "Can I look your car for drugs?"). One or both of the defendants said "okay." Trooper Rule testified that prior to asking for consent to search he suspected the defendants were transporting drugs, and he would have conducted a dog sniff of the truck if the defendants had refused consent. Rule is trained as a K-9 handler and had a drug-sniffing dog in the car with him.
Defendant Daniel Dominguez, testifying through an interpreter, acknowledged at the suppression hearing that he had agreed to answer the Trooper's questions. He claimed, however, that when he told the Trooper there were no guns or drugs in the truck Rule responded to him in Spanish, "Necesito ver" (I need to see). Dominguez testified that he answered back "no," but that Rule repeated, "Necesito ver." Dominguez testified that he believed Rule was going to "take him off the car" anyway, so he said yes. Dominguez said that Rule never used the term "puedo" (can I or may I) in asking for consent to search. For his part, Trooper Rule denied using the phrase "necesito ver"and said he was not familiar with that phrase. He said he had been taught to use the phrase "puedo buscar su carro por drogas" by an interpreter in federal court in Topeka who told him that this was a better way of asking for consent than a different phrase that Rule used to use. To the extent there is a conflict in the testimony, the court finds that the Trooper's testimony was more credible. Asking for permission to search is a fairly common practice by officers, particularly where they have grounds to suspect the transportation of drugs. The court finds credible the officer's testimony that he asked if he could search the truck. The defendant's denial that the officer asked for permission, his assertion that he told the officer "no," and his claim that the officer insisted that he needed to see are not credible. Asking for consent to search is a relatively common practice by officers, and the court finds credible the Trooper's testimony that he asked for permission to search. The defendant's assertions that the Trooper never asked for permission, that he demanded to see in the truck, and that the defendant refused to grant consent are not credible. Under the evidence presented, the court finds that Trooper Rule asked for consent to search in a permissive fashion, that the defendants understood what the Trooper was asking, and that the defendants voluntarily agreed to let the Trooper search the car.
After the defendants indicated that Rule could search the truck, Rule motioned for them to step out of the truck and asked them to stand in front of the vehicle. He told them to get their jackets because it was cold. Rule engaged in a brief inspection of the cab, the rear wheel well, and the tailgate. He also examined the spare tire, which was located under the pickup bed. The spare tire did not match the rest of the tires on the truck and Rule could see some greasy hand prints on the tire that appeared to be fresh. Rule suspected that drugs might be hidden in the tire, so he released some air from it. When he did so, he could detect a strong chemical odor that was unlike the usual odor from a tire. Rule concluded at that point that there were drugs in the tire. Because it would take some time to get the spare out, however, he decided to ask the defendants to follow him to Highway Patrol Headquarters in Hays, which was approximately seven miles away. Rule explained to the defendants that he wanted to examine the spare, and he asked the defendants to follow him to his office in Hays. They indicated that they would, and they subsequently followed Rule to the Headquarters. Once they were there, Rule removed the spare tire from the truck and bounced it off the ground. He could tell there was a large object inside the tire. The tire was then dismounted and a large quantity of methamphetamine was found inside. The defendants were arrested after the methamphetamine was found.
Daniel Dominguez testified that the truck he was driving was registered to his brother Gumercindo Dominguez. He testified that he was given permission to use the truck by a friend of Gumercindo's named David Solario. He said the truck actually belonged to Solario, but that Gumercindo had agreed to register the truck in his name because Solario had no credit.
The testimony was somewhat unclear as to the friend's last name.
At the suppression hearing, the defense presented evidence in an attempt to show that license plate brackets are commonly used on cars and that the brackets oftentimes obscure a portion of the license plate. II. Summary of Motion to Suppress.
The defendants first argue that the Trooper decided to stop their vehicle because it was being driven by two Hispanic males, and that such a racially-based stop violates the right to equal protection of the laws. Second, they contend that the traffic stop was an unreasonable seizure under the Fourth Amendment because merely having a partially obstructed license tag does not provide probable cause for a violation of K.S.A. § 8-133. Third, they argue that the trooper unlawfully detained them after issuing a warning citation by asking questions unrelated to the purpose of the stop. Finally, they argue that they did not consent to the search of their vehicle.
III. Discussion.
The Government argues as an initial premise that the defendants lack standing to object to the search of the vehicle. In moving to suppress evidence, a defendant has the burden of proving that a search violated his individual Fourth Amendment interests. United States v. Rascon, 922 F.2d 584, 586 (10th Cir. 1990). This requires an examination of two factors: whether the defendant has exhibited a subjective expectation of privacy in the area searched and whether society recognizes that subjective expectation as reasonable. Id. Insofar as automobiles are concerned, "where the defendant offers sufficient evidence indicating that he has permission of the owner to use the vehicle, the defendant plainly has a reasonable expectation of privacy in the vehicle and standing to challenge the search of the vehicle." United States v. Rubio-Rivera, 917 F.2d 1271, 1275 (10th Cir. 1990). The Tenth Circuit has recognized that the standing inquiry focuses upon reasonable expectations, and a defendant is thus not required "to produce legal documentation showing a chain of lawful custody from the registered owner" to himself. Id. The defendant may meet his burden by "stat[ing] that he gained possession from the owner or someone with the authority to grant possession." United States v. Arango, 912 F.2d 441, 445 (10th Cir. 1990). Although the defendants' evidence here concerning their possession of the truck was by no means complete, they have produced evidence that they obtained the truck from someone with authority to grant possession of the truck. The Government has not refuted this evidence, and the court thus concludes that the defendants have standing to object to the search.
As the court noted previously, there is no evidence that race played any part in Trooper Rule's decision to stop the defendants' vehicle. The court thus rejects defendants' argument that the stop violated their right to equal protection. The court further concludes that the initial stop was supported by probable cause to believe a violation of K.S.A. § 8-133 had occurred. The stop was therefore reasonable under the Fourth Amendment. See Whren v. United States, 517 U.S. 806, 810 (as a general matter, the decision to stop an automobile is reasonable where police have probable cause to believe that a traffic violation has occurred). Although the defendants argue that license-plate brackets are a common feature, and that they frequently obstruct portions of a license plate, the Government points out that Kansas courts construe K.S.A. § 8-133 to mean that " all of the tag must be legible, including the state name." Thus, maintaining a tag in such a condition that the issuing state is not legible is a violation. State of Kansas v. Hayes, 8 Kan. App. 2d 531, 660 P.2d 1387 (1983). The court need not determine here what degree of obstruction is required for a violation of the statute. It is sufficient to note that Trooper Rule could not read the name of the issuing state because it was almost totally obscured by the bracket, and he thus had reasonable grounds to believe a violation of the statute had occurred.
The court also rejects the defendants' contention that the officer violated their Fourth Amendment rights in the subsequent encounter and search. After Trooper Rule returned the defendant's documentation and issued a warning citation, he momentarily stepped back from the truck before returning to the driver's window and asking if he could ask the defendants a few questions. There is no evidence that the Trooper used duress or coercion to detain the defendants. He employed no show of authority and did not give any indication that the defendants were compelled to stay and answer his questions. The evidence shows that the defendants voluntarily agreed to answer questions. The Tenth Circuit has noted that a routine traffic stop can become a consensual encounter once a trooper has returned the driver's documentation so long as "`a reasonable person under the circumstances would believe he was free to leave or disregard the officer's request for information.'" United States v. Elliott, 107 F.3d 810, 814 (10th Cir. 1997). Under all of the circumstances present here, the court concludes that a reasonable person in these circumstances would have felt free to leave and to decline to answer further questions.
At the time he asked for consent to search, Trooper Rule was aware that the defendants had given him conflicting or questionable information about where they had been and where they were going, that they had an unusually small amount of luggage for a cross-country trip, and that they appeared unusually nervous for a routine traffic stop. He also reasonably believed that Daniel Dominguez had not wanted to produce his driver's license, and he had detected a strong odor of air freshener coming from the truck. Under these circumstances, the court concludes that in addition to this being a consensual encounter, the Trooper had a reasonable suspicion of criminal activity that justified a detention to ask the defendants a few questions, including asking for permission to search the truck.
When a defendant alleges he did not voluntarily consent to a search, the government bears the burden of proving consent was in fact voluntary. United States v. Sanchez-Valderuten, 11 F.3d 985, 990 (10th Cir. 1993). Whether consent is freely and voluntarily given is a question of fact determined from the totality of the circumstances. United States v. Pena, 143 F.3d 1363, 1366 (10th Cir. 1998). The government must show that the consent was unequivocal and specific and freely given without express or implied duress or coercion. United States v. Angulo-Fernandez, 53 F.3d 1177, 1180 (10th Cir. 1995). After considering all of the circumstances, the court concludes that the Government has met its burden. As noted previously, the defendants verbally agreed to let the Trooper look when he asked if he could search for drugs. There is no credible evidence that the Trooper used coercion or any show of authority to obtain this consent. The court rejects as not credible the defendant's assertion that he initially refused the Trooper's request. Also, the stop in question was brief and took place on a busy public highway in broad daylight. It involved a single officer who was polite to the defendants throughout the course of the stop. Nothing in the defendants' conduct during the stop (or in the proceedings before this court) suggests that they were unable to comprehend the situation or the nature of the Trooper's request for consent to search. The court further concludes that the defendants had a sufficient understanding of English, as demonstrated by their conducting a significant part of the conversation with the Trooper in English and by their responsiveness to his questions, that they were capable of understanding the Trooper. Cf. United States v. Zapata, 180 F.3d 1237, 1242 (11th Cir. 1999). Moreover, they clearly understood when the Trooper asked them in Spanish if he could search, even if the officer's Spanish was not entirely grammatically correct. The defendants' affirmative response to the Trooper's request to search was unequivocal and specific, and the evidence shows that it was given of the defendants' free will. Under all of the circumstances, the court concludes that the consent to search was voluntary.
The defendants have not specifically challenged the Trooper's conduct after he obtained consent for the search. The court notes that the Trooper's examination of the truck, including the spare tire, was clearly within the scope of consent given. See United States v. Ramstad, 308 F.3d 1139, 1146-47 (10th Cir. 2002) (consent to search vehicle for drugs implies authority to look anywhere drugs might be hidden). Once the Trooper saw fresh hand prints on the spare — indicating that it had been recently handled — and detected an unusual chemical odor coming out of the tire, the court concludes that he likely had probable cause to believe that the spare tire contained contraband. (This is due not only to indications from the spare tire, but also because of other facts already known to the Trooper, such as the defendants' inconsistent statements about their travel and the strong odor of air freshener from the truck.). Cf. United States v. Anderson, 114 F.3d 1059, 1066 (10th Cir. 1997) (probable cause when driver and passenger gave slightly conflicting versions of travel plans, and officer detected scent of air freshener in car and observed evidence that gas tank had been tampered with). At that point, it would have been reasonable for the Trooper to detain the defendants and to continue the search, which would require the removal of the spare tire, in the relative safety of the Highway Patrol Headquarters rather than on the roadside. The evidence shows that the defendants actually voluntarily agreed to follow the Trooper to the Headquarters, but at any rate the court finds that the Trooper had authority to direct the defendants to accompany him and to continue the search without their consent. Once they were at the station, further examination of the tire gave added indications that there was contraband inside, and the subsequent discovery of methamphetamine in the tire was appropriate. Cf. Florida v. Meyers, 466 U.S. 380, 381 (1984) (warrantless search of automobile is reasonable under the Fourth Amendment where probable cause exists).
IV. Conclusion.
The defendants' Motion to Suppress (Doc. 21 29) is DENIED. IT IS SO ORDERED