Opinion
No. 02-40111-01-SAC
January 7, 2003.
MEMORANDUM AND ORDER
This case comes before the court on the defendant Jose Aispuro-Lopez's Motion to Suppress (Dk. 27). The government has filed a response opposing the defendant's motion. (Dk. 29). On November 20, 2002, the government presented the testimony of two law enforcement officers, and the court heard counsels' arguments. Having reviewed all matters submitted and researched the law relevant to the issues, the court is ready to rule.
INDICTMENT
On September 11, 2002, the grand jury returned a single count indictment against the defendant Jose N. Aispuro-Lopez that charges him with possession with intent to distribute approximately 11.6 kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1).
FACTS
Sergeant Kelly Schneider with the Russell County Sheriff's Department was patrolling I-70 highway for traffic violations and criminal interdiction the afternoon of August 30, 2002. Around 3:30 p.m, he observed an eastbound blue Ford Windstar van traveling in the right lane weave across the centerline and nearly strike the side of a vehicle that was passing it. Sergeant Schneider decided to stop the van's driver for committing the traffic violation of failure to maintain a single lane of traffic. Approximately two miles west of Russell near milepost 182 on I-70, Sergeant Schneider pulled the van over and approached on the passenger side. He motioned for the driver to roll down the passenger window, but the driver indicated the window would not roll down and proceeded to unlatch the passenger door. Sergeant Schneider opened the door and explained the purpose of the traffic stop.
In response to a request for license and registration, the defendant produced an Oregon driver's license bearing the name of Jose Lopez. The defendant only produced a title for the van which caused the officer to ask who owned the van. The defendant said he had purchased the van the week before, but the title for the van showed its owner to be Marcos Lopez of Phoenix, Arizona. The defendant did not produce any further documentation showing he was lawfully entitled to possess the van.
Sergeant Schneider asked about travel plans, and the defendant answered that he was headed for Kansas City where he planned to stay for approximately one week. Able to see the entire interior of the van, Sergeant Schneider observed that the defendant's luggage consisted only of a small duffle bag, a shaving bag and two shirts on hangers. Sergeant Schneider determined this small amount of luggage was not consistent with the defendant's stated travel plans for a longer stay in Kansas.
Sergeant Schneider also testified that the defendant appeared nervous and would not make eye contact when answering the officer's question about travel plans. The defendant also showed Schneider a copy of a warning citation that Kansas Highway Patrol Trooper Mitch Nollette had issued the defendant earlier that day for following too close. Sergeant Schneider decided not to issue a ticket or give a written warning but did warn the defendant verbally. At this point, Sergeant Schneider returned the driver's license, title and warning and told the defendant to drive carefully and to have a safe trip.
Sergeant Schneider then stepped back from the van and requested permission to ask more questions. After the defendant indicated this would be permissible, Sergeant Schneider asked whether Trooper Nollette had searched the van for narcotics and the defendant said, "yes." When Sergeant Schneider then asked for the defendant's consent to search the van, the defendant became "very, very nervous . . . and said, yeah." (Dk. 30, p. 28). Sergeant Schneider testified that the defendant's hands were shaking and that he appeared more nervous now than earlier in the traffic stop. The defendant turned off the ignition, and Schneider had the defendant stand in front of the van while he searched it.
Based on his prior experience gained this past year with false compartments in the frame rails of Ford Windstar vans, Sergeant Schneider immediately laid down by the passenger door and inspected the frame rails. The officer testified that a Windstar's frame rails are u-shaped with the opened side attached to the van's floor and with visible holes along the side of the rails. On two prior occasions, Schneider has found secret compartments inside a Windstar's frame rails created by plugging the side holes and cutting an opening into the floor from inside the van. On one occasion, Sergeant Schneider found money in the secret compartment, but he found nothing on the other occasion. The officer testified he was certain that one of the stops involving a Windstar van occurred prior to the case at hand. He also testified that he was not certain which stop involved an empty secret compartment.
When Schneider looked at the frame rails on the Windstar being operated by the defendant, he could not see into the side holes and concluded the holes had been plugged and painted over. Believing this Windstar could also have a secret compartment, he pulled back the carpeting on the passenger-side floorboard. Schneider immediately noticed the smell of fresh paint and determined that the carpet padding had been glued to the van's floor. Schneider testified that it is uncommon for carpet padding to be glued down. Based on these circumstances, Schneider concluded that the Windstar had a secret compartment in the frame rails. Schneider also testified it has been his experience that secret compartments usually contain narcotics or money. Sergeant Schneider told the defendant that he believed the van had a false compartment, and the defendant responded, "You think so?"
Sergeant Schneider instructed the defendant to follow him to the sheriff's department so that he could dismantle the secret compartment. The defendant drove the van as instructed. At the sheriff's department, Sergeant Schneider removed the seats, pulled back the carpeting, peeled off the padding and found a metal cap that once removed gave him access to the compartment under the passenger side. He found there seven packages of white powder. He also discovered another secret compartment in the frame rail on the driver's side which contained six more packages of white powder. The white powder was subsequently tested and found to be approximately 25 pounds or 11.6 kilograms of cocaine.
Kansas Highway Patrol Trooper Mitch Nollette testified that he stopped the defendant around 1:21 p.m. for following too closely. Trooper Nollette requested and received permission to search the van but found nothing illegal. The videotape shows Trooper Nollette kneeling near the passenger door and looking underneath the van. Trooper Nollette testified he was looking for small boxes that might be welded to a van's floor. While admitting he may have been told that frame rails could be modified to create secret compartments, Trooper Nollette denied having any specific experience with them. Trooper Nollette also testified that he saw nothing with the frame rails that led him to believe they contained narcotics.
ARGUMENTS
In his supplemental memorandum, the defendant concedes that the initial traffic stop was lawful, that his detention was reasonable, and that Sergeant Schneider requested and received valid consent to search the van alongside I-70. What the defendant does challenge is whether Sergeant Schneider had probable cause to detain him when he was instructed to follow the sergeant to the sheriff's office. The defendant argues the circumstances, individually and together, are not enough to sustain a finding of probable cause. The government responds that upon discovering what he believed was a secret compartment, Sergeant Schneider had probable cause for arresting the defendant, searching the van, and seizing the contraband.
LAW AND ANALYSIS
A driver has standing to challenge a vehicle search if he establishes lawful possession of the vehicle. See United States v. Soto, 988 F.2d 1548, 1552 (10th Cir. 1993). Defense counsel argued at the hearing that standing is not really an issue because the defendant was the only person in the van. The case law in the Tenth Circuit recognizes that a driver's mere physical possession of a vehicle does not establish lawful possession. See United States v. Arango, 912 F.2d 441, 445-46 (10th Cir. 1990), cert. denied, 499 U.S. 924 (1991). As determined at the time of the stop and not refuted at the hearing, the only documentation regarding ownership of the van showed Marcos Lopez as the titled owner. While "legal documentation" may not be necessary, the defendant presented no evidence at the hearing proving his assertion during the traffic stop that he had recently purchased the van. See United States v. Arrango, 912 F.2d at 446 n. 2. "`[A] defendant cannot claim a violation of his Fourth Amendment rights based only on the introduction of evidence procured through an illegal search and seizure of a third person's property or premises.'" United States v. DeLuca, 269 F.3d 1128, 1131-32 (10th Cir. 2001) (quoting United States v. Erwin, 875 F.2d 268, 270 (10th Cir. 1989)). The court has no basis on which to find that the defendant has standing to challenge the search of the van. As DeLuca and Arango teach, the defendant can only seek to have the evidence suppressed as fruit of his own allegedly unlawful detention. In his supplemental memorandum, the defendant limits his challenge to the detention and argues the evidence found in his van was the fruit of this detention.
Finding no unlawful detention here, the court finds it unnecessary to decide whether the drugs recovered from the van were the fruit of that detention.
"Transportation of a defendant to the police station can not be justified absent probable cause to believe the defendant committed a crime." United States v. Shareef, 100 F.3d 1491, 1508 (10th Cir. 1996) (citing See United States v. Gonzalez, 763 F.2d 1127 (10th Cir. 1985) ("police request that defendant follow them to station house not part of valid Terry stop"); Hayes v. Florida, 470 U.S. 811 (1985)). "Absent exigent circumstances, once the detaining officer removes the detainee from the site of the initial stop, the line between investigative detention and custodial arrest has been crossed, and the transfer must have been supported by probable cause." United States v. Soto, 988 F.2d at 1558 (citations omitted). By instructing the defendant to follow him to the sheriff's office, Sergeant Schneider effectively arrested the defendant.
A warrantless arrest must be supported by probable cause. See United States v. Vazquez-Pulido, 155 F.3d 1213, 1216 (10th Cir.), cert. denied, 525 U.S. 978 (1998). The substantive probable cause standard oft-stated in the Tenth Circuit is:
An officer has probable cause to arrest if, under the totality of circumstances, he learned of facts and circumstances through reasonably trustworthy information that would lead a reasonable person to believe that an offense has been or is being committed by the person arrested. Probable cause does not require facts sufficient for a finding of guilt; however, it does require more than mere suspicion.
United States v. Patane, 304 F.3d 1013, 1016 (10th Cir. 2002) (quoting United States v. Morris, 247 F.3d 1080, 1088 (10th Cir. 2001)); see also United States v. Vazquez-Pulido, 155 F.3d at 1216. "`Probable cause must be evaluated in light of circumstances as they would have appeared to a prudent, cautious, trained police officer.'" United States v. Snow, 82 F.3d 935, 942 (10th Cir. 1996) (quoting United States v. Morgan, 936 F.2d 1561, 1568 (10th Cir. 1991), cert. denied, 502 U.S. 1102 (1992)); see generally Ornelas v. United States, 517 U.S. 690, 700 (1996) (indicating "that a police officer may draw inferences based on his own experience in deciding whether probable cause exists"); United States v. Santana-Garcia, 264 F.3d 1188, 1192 (10th Cir. 2001) ("We measure probable cause against an objective standard and evaluate it in relation to the circumstances as they would appear to a prudent, cautious and trained police officer.").
On several occasions, the Tenth Circuit has recognized "that the apparent existence of a hidden compartment likely to contain contraband is sufficient to create probable cause to arrest a defendant." United States v. Morse, 15 Fed. Appx. 590, 2001 WL 649453, at *5 (10th Cir. June 12, 2001) (citing United States v. Soto, 988 F.2d at 1558; United States v. Arango, 912 F.2d at 447); see also United States v. Anderson, 114 F.3d 1059, 1066 (10th Cir. 1997) ("Evidence of a hidden compartment can contribute to a finding of probable cause to search"). Like these Tenth Circuit decisions, there are other factors present here to bolster the probable cause determination. The defendant displayed an increase in nervousness after being asked for consent to search. See United States v. Morse, 2001 WL 649453 at *5. The defendant had an inadequate amount of luggage for his stated travel plans. See United States v. Arango, 912 F.2d at 447. There were no registration or title documents establishing the defendant as the owner of the van. See United States v. Betancur, 24 F.3d 73, 78 (10th Cir. 1994) (that the defendant was driving a car registered to someone else can contribute to a reasonable suspicion of criminal activity). Sergeant Schneider smelled fresh paint when he pulled back the carpeting. See United States v. Morse, 2001 WL 649453 at *5. Contrary to the officer's experience in searching other vehicles, the carpet padding in the van had been glued down so as to prevent someone from seeing whether the van's floor had been modified to create access to a secret compartment. Finally, Sergeant Schneider had prior personal experience with finding secret compartments in the frame rails of Ford Windstar vans and had learned what to look for in determining if the frame rails had been so modified.
"Although insufficient to create probable cause standing alone, factors like nervousness, overly friendly behavior, and vague descriptions of travel plans may still serve to bolster the finding of probable cause when considered as part of the totality of the circumstances." United States v. Ozbirn, 189 F.3d 1194, 1200 n. 4 (10th Cir. 1999) (citation omitted).
The defendant separates each of the above factors and attempts to minimize the significance to be attached to them or the inferences to be drawn from them. The totality of circumstances standard that governs a probable cause determination does not countenance such an approach. There can be no serious argument that the likelihood of an innocent explanation for one factor decreases in the presence of other suspicious factors that are not so easily explained. For example, while the defendant may have been able to offer plausible explanations for his luggage and title document, a trained officer would properly question the truthfulness of the same when the defendant becomes extremely nervous after being asked for consent to search and when the frame rails on the van apparently have been modified to create a secret compartment. The Tenth Circuit has held that courts should defer to the ability of trained and experienced officers to distinguish between innocent and suspicious actions. United States v. Zubia-Melendez, 263 F.3d 1155, 1162 (10th Cir. 2001).
The defendant also argues the instant case is similar to the Tenth Circuit's reported decision in United States v. Recalde, 761 F.2d 1448 (10th Cir. 1985), which held that a defendant's Fourth Amendment rights were violated when officers without probable cause to arrest required the defendant to follow them to the state police office. The government conceded in Recalde that the officers lacked probable cause to arrest the defendant on the highway and that the officers' subsequent search of the vehicle at the police office was not based on probable cause. 761 F.2d at 1452, 1454 n. 6. Because of the government's concessions there, the decision is not persuasive authority on whether an officer has probable cause to arrest upon observing that the car's body has been tampered with.
In conclusion, the court finds that all of the factors discussed above in combination with Sergeant's Schneider determination at the scene that the van contained a secret compartment in the frame rails created probable cause to arrest the defendant.
IT IS THEREFORE ORDERED that the defendant Jose Aispuro-Lopez's Motion to Suppress (Dk. 27) is denied.