Summary
denying motion to suppress for racial profiling where officer did not know suspect's race before the stop
Summary of this case from McNeal v. LoseeOpinion
Case No. 02-40020-01-JAR
June 11, 2002
MEMORANDUM ORDER DENYING MOTION TO SUPPRESS
Defendant Louis M. Aliperti, Jr. is charged in a one count Indictment with possession with intent to distribute cocaine. He filed a Motion to Suppress Evidence (Doc. 15), which came on for hearing on June 3, 2002. Defendant moves to suppress cocaine seized from the inside of a spare tire mounted on the undercarriage of his pickup truck. He contends that the traffic stop, which resulted in the challenged seizure, violated the Equal Protection Clause because the officer engaged in racial profiling and stopped him only because he appeared to be Hispanic. Because the Court finds no support for Defendant's claim, the Court denies the motion to suppress evidence.
Although his motion seeks suppression of all evidence seized, the only evidence the parties mentioned in their pleadings or at the hearing was the cocaine seized from the spare tire of the defendant's truck.
FACTS
On December 23, 2001, Trooper John D. Rule of the Kansas Highway Patrol spotted a pickup truck traveling in the passing lane of east bound Interstate 70 in Ellis County, Kansas. Trooper Rule, believing the truck was speeding, checked its speed with his radar gun, and determined that the truck was going 78 mph, above the posted 70 mph speed limit. Rule testified that he had checked the calibration of the radar gun that morning and believed it was operating correctly. The defendant testified that he was in fact speeding, but only for a few seconds, in order to pass a tractor trailer; thereafter he drove under the speed limit. The defendant further testified that there were other vehicles speeding faster than he was. Rule testified that he did not see any vehicles passing the defendant or speeding faster than the defendant was at that time. At the time he spotted the pickup truck and checked its speed, Rule was driving west bound on Interstate 70. So, he turned around in the median, followed the pickup truck for about 90 seconds, or for about 2 miles, and effected a stop of the vehicle at approximately 11:43 a.m. No other trooper was present during the traffic stop, except for Trooper Rule's drug dog, canine officer "Budkis," who remained in the patrol vehicle during the traffic stop.
The defendant testified that he is Italian, but that Rule probably thought he was Hispanic when Rule first spotted his truck on the other side of the highway, and that after Rule turned around, he pulled along side the defendant for a short time, before activating the patrol car lights and stopping the defendant's vehicle. The defendant testified that when Rule did this, he got a closer look at the defendant and must have then believed that the defendant was Hispanic.
Rule testified that he did not recall whether he could see the defendant when he first spotted the truck on the other side of the highway. Rule denied stopping the defendant because of defendant's race. Rule testified that he did not know what defendant's ethnicity was. In fact, on the arrest report Rule ultimately filed on this incident, he checked a box indicating that the defendant was not Hispanic. The Court believes Rule's testimony on this issue.
First, it is unlikely that Rule got a good look at the defendant when he first spotted him on the other side of the highway, a split second opportunity across a 50 or 60-foot wide median. After Rule turned around and followed the defendant for about 90 seconds, Rule had a better opportunity to observe the defendant, particularly when he pulled along side defendant's truck. However, having observed the defendant testify at the hearing, the Court notes that the defendant is a fair complexioned man, whose appearance would not necessarily indicate that he was Hispanic. In fact, the defendant is not Hispanic; he testified that he is of Italian origin.
The defendant also suggests that Rule perceived him to be Hispanic not only because of his appearance but because his truck had Arizona license tags. The defendant testified that during the stop Rule said something about thinking the defendant was Mexican. Rule denies making such a statement, and such a statement was not recorded during or after the traffic stop.
Immediately before effecting the traffic stop, Trooper Rule activated a video camera mounted on the dash of his patrol vehicle, as well as an audio tape recorder clipped on his belt, which recorded the following pertinent events. The defendant stopped his pickup truck on the right-hand shoulder of the highway and Rule parked his patrol car immediately behind the defendant's truck. At 11:43, Trooper Rule approached the driver side window and spoke with the defendant, who was the driver and sole occupant of the pickup truck. The defendant remained seated in the pickup truck. Rule told the defendant that he was speeding, asked him if he owned the truck, and asked him if he had just bought the truck. The defendant's responses to these questions are inaudible. At Rule's request, the defendant gave his driver's license and registration papers to Rule, and at 11:44 Rule returned to his patrol car and asked dispatch to run the Arizona license tags on the truck, as well as a "triple I" check for criminal history of the defendant.
Five minutes later, at 11:49:20, having determined that the truck was registered to the defendant and that the driver's license and license plates were valid, Rule returned to the defendant's vehicle and returned the license and registration papers to the defendant. Rule advised the defendant that he was merely giving him a written warning. Rule then asked the defendant how long he was going to be in New York, and what part of New York he was going to. These questions apparently followed a statement by the defendant that he was on his way to New York. Rule then told the defendant to have a good trip and take care.
Rule turned and began walking back to his patrol car. After taking two steps, Rule turned around and asked the defendant if he could ask him a couple of questions. At this point, the defendant testified, the engine of his truck was running, and he probably had the truck in gear and ready to drive off. Rule was not standing in front of the defendant's truck, nor close enough to the truck to impede the defendant from rejecting Rule's request and driving off. But, the defendant testified that he did not feel free to leave and Rule did not tell him he was free to leave. The defendant indicated his willingness to answer questions, and Rule then asked him whether he had brought anything illegal with him, such as guns or drugs. The defendant said no. Rule asked if he could search the truck. The defendant said yes. Rule then asked the defendant to step out of the truck and stand in front of the truck. The defendant complied. At 11:50:03, Rule began searching the cab of the truck. Defendant stood in front of the truck, on the driver's side, no more than two arms lengths away from the truck. Defendant watched Rule search the cab of the truck. At 11:50:51, the defendant moved next to the driver's side door and said something about his clothes. Rule politely asked the defendant to stand in front of the truck. At 11:51:06, Rule completed his search of the cab of the truck, and walked to the rear of the truck, where he laid down on the ground to look under the truck. From about 11:51:10 to about 11:51:57, Rule lay on the ground, looking at the undercarriage of the truck. During this time, the defendant walked back and forth in front of the truck, and bent down, trying to see what Rule was doing. The defendant testified that he did not agree to Rule searching under the truck; he thought Rule was only going to search the cab of the truck. Nevertheless the defendant did not say anything to Rule to indicate that he objected to Rule searching underneath the truck. Although defendant testified that he asked Rule what he was doing and Rule responded angrily that defendant must remain in the front of the truck, the videotape and audiotape reveal no such exchange.
At 11:51:57, Rule stood up and walked to front of truck. Rule asked the defendant what he had in the spare tire. The defendant responded that he did not know, that he had bought the truck without even looking at the spare tire. At 11:52:05 Rule patted down the defendant, searching for weapons. Rule then asked the defendant why there were a cord and lock on the spare tire, and how the defendant could remove the spare tire. The defendant reiterated that he had just bought the truck, and had not checked the spare tire before the purchase.
At 11:52:20, Rule asked the defendant if he would follow Rule to his office, and pointed to the office, which was in view, about 200 yards away. The defendant agreed. Rule indicated that there he could lift the truck up and have a look at the spare tire. The defendant testified that Rule "ordered" him to follow him to the office and that he did not feel free to refuse. The videotape and audiotape reveal, however, that as with all of their verbal interchanges, Rule was polite, and spoke in a pleasant and calm tone of voice; the defendant was also cooperative, polite and spoke in a pleasant tone of voice.
From 11:52:25 to 11:55:48, Rule drove his patrol car to his office, with the defendant following in his pickup truck. The two vehicles made a U-turn across the median, traveling westbound on the left-hand shoulder of I-70 for a short distance, until it was safe to cross the highway and take the exit to Rule's office. At the trooper's office, no further activity can be seen on the videotape, as the patrol car camera is trained on the parking lot where the patrol car is parked. However, the audio tape recorder on Rule's belt continued to record conversations between Rule and the defendant, and between Rule and other troopers.
Rule is heard asking the defendant if he had taken the spare off before now and whether he knew how to unlock the spare tire. The defendant responded that he noticed the lock on the spare tire, but did not try to unlock it. By 11:59:14, Rule had taken the cap off the tire and advised the defendant that he could smell an odor emanating from the air escaping from the tire. Shortly after that, Rule used bolt cutters to cut the bicycle type cord and lock on the spare tire, slit the spare tire open and found inside the spare tire, wrapped packages containing more than 500 grams of cocaine.
ANALYSIS
The defendant seeks to suppress the evidence, contending that Trooper Rule effected the traffic stop only because Rule perceived that the defendant was Hispanic, a practice of racial profiling that violates the Equal Protection Clause of the United States Constitution. Nothing in the record supports this assertion. Rule stopped the truck because it was speeding. Defendant admits he had been speeding as the Trooper passed by. Stopping the truck because it was speeding satisfied the Fourth Amendment requirement of `some minimal level of objective justification' for making the stop. Rule denies any other motivation in stopping the truck. Rule had little opportunity, if any, to view the defendant before the stop and the defendant's appearance would not necessarily lead Rule to perceive that the defendant was Hispanic. The Court therefore concludes that the traffic stop was legitimate, and did not violate the Equal Protection Clause.
Terry v. Ohio, 392 U.S. 1, 22 (1968); I.N.S. v. Delgado, 466 U.S. 210, 217 (1984).
Having given the defendant a warning citation for speeding, and having determined that his driver's license and car registration were valid, Trooper Rule terminated the traffic stop. The defendant was free to go. Rule testified that he had noticed that the defendant was overly nervous during the traffic stop, his hands shook and he made little eye contact with Rule. He did not appear to be under the influence of drugs or alcohol, nor laboring under any mental defect. So, Rule decided to ask the defendant if he was willing to answer a few questions. The defendant's truck motor was running, and the defendant testified that he may have placed the truck in gear when Trooper Rule, who had begun walking away from the truck, turned around and asked the defendant if he could ask him a few questions.
Although the initial stop of the defendant's vehicle was legitimate, any further 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."
United States v. Patten, 183 F.3d 1190, 1193 (10th Cir. 1999) (quoting Florida v. Royer, 460 U.S. 491, 500 (1983)).
It must be temporary, and its scope must be carefully tailored to its underlying justification. Upon issuing a 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.
United States v. Gutierrez-Daniez, 131 F.3d 939, 942 (10th Cir. 1997), cert. denied, 523 U.S. 1035 (1998); United States v. Wood, 106 F.3d 942, 945 (10th Cir. 1997).
Patten, 183 F.3d at 1193; United States v. Anderson, 114 F.3d 1059, 1064 (10th Cir. 1997).
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. Not having an articulable suspicion at this point, Rule sought a consensual encounter, by asking the defendant for permission to ask him a few questions. When the defendant agreed to answer Rule's questions the encounter became consensual. 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. Merely asking questions does not constitute a seizure or implicate the Fourth Amendment.
United States v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir. 1998).
See United States v. Walker, 933 F.2d 812, 816-17 (10th Cir. 1991) cert. denied, 502 U.S. 1093 (1992).
Royer, 460 U.S. at 497.
Rule had already returned the defendant's license and registration papers. This is critical, because retention of a motorist's driver's license and/or other pertinent documents by the officer during any questioning renders an encounter not consensual, until such time as the documents are returned. The Tenth Circuit has consistently held "that an encounter initiated by a traffic stop may not be deemed consensual unless the driver's documents have been returned to him."
See Walker, 933 F.2d at 817.
United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir.), cert. denied, 511 U.S. 1095(1994); accord United States v. Lambert, 46 F.3d 1064, 1068 (10th Cir. 1995).
Although the defendant testified that he did not feel free to go at this point, while acknowledging that he agreed to answer Rule's questions, his subjective state of mind is not relevant. When a person has an objective reason to believe he is not free to terminate his conversation with the officer and proceed on his way, the consensual encounter becomes an investigative detention, which must be limited in scope and duration, and supported by reasonable suspicion of criminal activity. But these circumstances, viewed objectively, gave the defendant no reason to believe he was not free to go. At this point, Rule did not touch the truck, maintained at least an arm's length distance from the truck and did not touch or display his gun, nor make any other show of force. Rule also asked for permission to ask the defendant a few questions. Rule asked the defendant his travel plans. The defendant responded that he was going to New York to visit family Rule found this curious because he had observed that there was only one small duffel bag in the truck, which seemed insufficient baggage for such a long trip. Rule then asked for permission to search the truck. Although the defendant testified that he did not grant consent to search more than the cab, the defendant in no way articulated that his consent was limited in scope. The audiotape of their conversation reveals that the defendant merely said yes, and at all times during Rule's search of the cab and the undercarriage of the truck, the defendant maintained a cooperative demeanor.
United States v. Shareef, 100 F.3d 1491, 1500 (10th Cir. 1996).
Consent must be given voluntarily. There is no requirement that it be given knowingly and intelligently; there is no requirement that the consenting party knows they have the right to refuse consent. In Schneckloth v. Bustamonte, the Supreme Court noted that in determining voluntariness, courts should look to the totality of circumstances, including the age, education, experience, intelligence, and knowledge of the right to withhold consent, as well as whether the consenting party was advised of his or her constitutional right. The court should also consider whether officers gained permission to search by coercive means or under inherently coercive circumstances.
412 U.S. 218 (1973).
In this case there were no coercive means employed. From the Court's observations of the video taped encounter, Rule was at all times soft spoken, pleasant, respectful and low key. Defendant's behavior mirrored Rule's. There were no harsh words, no show of force, or anything other than positive, and cooperative interaction between Rule and the defendant. Rule was the only trooper present during the stop; the encounter occurred on a highway with moderate traffic and in public view. Although Rule did not advise the defendant of his right to say any, Rule asked permission twice: first for permission to ask the defendant questions; later for the defendant to follow him to his office, so he could put the truck on a lift and get a better look at the spare tire. Rule never ordered, demanded or directed the defendant to answer questions or accompany him to the office. The defendant willingly followed Rule's patrol car, turning around on a crossover, driving slowly on the shoulder until it was safe to cross the highway and take the exit to Rule's office.
Based on the totality of the circumstances, the Court finds that the defendant consented to answering Rule's questions, consented to Rule searching the truck on the highway and consented to following Rule to his office so the truck could be searched more thoroughly. For these reasons, the Court concludes that the defendant's motion to suppress evidence has no legal basis and should be denied as a matter of law.
IT IS THEREFORE ORDERED THAT defendant's motion to suppress evidence (Doc. 15) is DENIED.
IT IS SO ORDERED.