Opinion
Case No. 04-40108-01/02/03-RDR.
January 13, 2005
MEMORANDUM AND ORDER
Defendants are charged in a three-count indictment. Count 1 charges all three defendants with conspiracy to distribute in excess of 500 grams of methamphetamine. Count 2 charges defendants Renteria and Aguiluz with possession with intent to distribute "approximately" 3.3 kilograms of methamphetamine. Count 3 charges defendant Avila with attempting to possess with intent to distribute "approximately" 3.3 kilograms of methamphetamine.
Various pretrial motions are pending in this case. After due consideration, the court shall rule upon the motions as follows.
MOTIONS FOR BILL OF PARTICULARS (Doc. Nos. 30, 41 and 54 — These motions shall be denied. The charges and factual background of this case appear straightforward. The government has shared its discovery with defendants. The government represents that this discovery includes the names of any person the government will claim as a co-conspirator. The court will hold the government to that representation. Given the nature of the charges and the sharing of information, the court is not convinced that a bill of particulars is necessary for defendants to adequately defend against the charges in this case. See U.S. v. Dunn, 841 F.2d 1026, 1029-30 (10th Cir. 1988).
MOTION TO INSPECT TANGIBLE EVIDENCE (Doc. No. 31) — This motion shall be granted consistent with the general order of discovery and scheduling (Doc. No. 26).
MOTIONS FOR JOINDER OF CO-DEFENDANTS' MOTIONS (Doc. Nos. 32, 42 and 51) — These motions shall be granted with the exception that defendant Avila shall not be permitted to join in the motion to suppress (Doc. No. 47).
MOTION FOR DISCLOSURE OF 404(b) EVIDENCE (Doc. No. 33) — This motion shall be granted consistent with the general order of discovery and scheduling (Doc. No. 26).
MOTION FOR DISCOVERY (Doc. No. 34) — This motion shall be considered moot.
MOTION TO COMPEL DISCLOSURE (Doc. No. 35) — This motion shall be granted consistent with the general order of discovery and scheduling (Doc. No. 26).
MOTION TO SEVER (Doc. No. 36) — This motion was filed on behalf of defendant Renteria. It states broadly that defendant will not have a fair trial unless he is severed from the trial of the other defendants. No reasons are listed to support this assertion.
There is a conspiracy charge in this case. It is preferred that persons charged with conspiracy be tried together. U.S. v. Ray, 370 F.3d 1039, 1045 (10th Cir. 2004). The court is not aware of any grounds for finding that an unsevered trial would be unfair. Therefore, the motion to sever shall be denied.
MOTION FOR DISCOVERY (Doc. No. 39) — This motion asks for specific information relating to the alleged drugs seized in this case. The government asserts that the items mentioned in this motion are addressed in the general order of discovery and scheduling (Doc. No. 26) and that this motion should be considered moot. The court believes that many aspects of this motion are not addressed by the general order of discovery. Therefore, the court shall direct the government to specifically address the discovery requests made in this motion within ten days of this order. Defendants shall then have five days to reply. In the meantime, the motion shall remain pending.
MOTION FOR DISCLOSURE OF EXPERT TESTIMONY (Doc. No. 43)-This motion shall be granted consistent with the general order of discovery and scheduling (Doc. No. 26). The summaries of expert testimony shall be produced 14 days prior to trial.
MOTION FOR NOTICE OF CO-CONSPIRATOR STATEMENTS (Doc. No. 45)-The government has responded to this motion by stating that it presently knows of no statements which it would offer under FED.R.EVID. 801(d)(2)(E). Therefore, this motion shall be considered moot.
MOTION TO DETERMINE ADMISSIBILITY OF CUSTODIAL STATEMENTS (Doc. No. 46) — This motion is unopposed and shall be granted. The hearing to determine admissibility of custodial statements shall be conducted approximately one week prior to trial.
MOTION FOR DISCLOSURE OF AGREEMENTS (Doc. No. 50) — This motion shall be granted consistent with the general order of discovery and scheduling (Doc. No. 26); otherwise, the motion is denied. If there are specific items of discovery requested in this motion which defendants feel should be disclosed but are not covered by the general order of discovery and scheduling, defendants are granted leave to file a motion for disclosure of those specific items.
MOTION FOR NOTICE OF EVIDENCE (Doc. Nos. 40 and 52) — This motion shall be granted consistent with the general order of discovery and scheduling (Doc. No. 26). Disclosure of evidence under Rule 609 and Rule 807 shall be made 10 days or more prior to trial.
MOTION TO DISMISS OR STRIKE (Doc. Nos. 48 53) — This motion argues that Count 2, which alleges possession with intent to distribute "approximately" 3.3 kilograms of methamphetamine, should be dismissed because it is improper to allege the drug quantity as an element of the crime. The motion also argues that it is improper for a jury to determine drug quantity as a sentencing factor. In the alternative, the motion asks that the drug quantity be stricken from the indictment as surplusage. We assume that defendant Avila, in joining this motion, is making the same arguments as to Count 3.
We reject the motion to dismiss for the following reasons. Even if we assume that the drug quantity alleged is not an element of the crime, defendants cite no authority which confines the government to alleging only the statutory elements of a crime. Therefore, we reject defendants' implied contention that any alleged fact in an indictment must be a statutory element of an offense. If the drug quantity alleged is prejudicial or inflammatory, the court may strike it. U.S. v. Gressett, 773 F.Supp. 270, 274-75 (D.Kan. 1991). The court will continue to evaluate this claim prior to the submission to the jury of the charges as alleged in the indictment. But, this argument does not justify dismissal of Count 2 or Count 3.
Whether the drug quantity involved in this case is referred to the jury for decision is a question which can be decided at the time of trial. The court may decide to use the jury in an advisory capacity.
Finally, we acknowledge that at the conclusion of the motion to dismiss or strike, defendants request a grand jury transcript "to determine whether the Indictment was properly found for an amount of 3.3 kilograms of methamphetamine." This request shall be denied for two reasons. First, we note that the grand jury found an approximate amount of methamphetamine according to the language of the indictment. Second, defendants have not presented a particularized and compelling need for the grand jury transcript to overcome the interests in maintaining the secrecy of grand jury proceedings. See In re Grand Jury 95-1, 118 F.3d 1433, 1437 (10th Cir. 1997); In re Lynde, 922 F.2d 1448, 1451-52 (10th Cir. 1991); see also, U.S. v. Rising, 867 F.2d 1255, 1260 (10th Cir. 1989).
In sum, the court shall deny the parts of the motion which ask for dismissal of Counts 2 or 3 and which ask for a grand jury transcript. The court shall keep under advisement the request to strike the drug quantity allegation from the indictment or at least shield that allegation from the jury.
MOTION TO SUPPRESS (Doc. # 47) — On December 16, 2005, the court conducted a hearing upon a motion to suppress filed by defendant Aguiluz and joined in by defendant Renteria. The motion sought to suppress the evidence obtained from the search of a car they were using on August 1, 2004 when they were stopped by a deputy sheriff in Geary County, Kansas. The stop occurred on I-70 and the grounds for the stop are not contested in this matter. The search of the car occurred after defendant Aguiluz, the driver, allegedly consented to a request to search. Defendants contend that the consent to search was invalid because defendant Aguiluz did not understand the English-speaking officer's request. Defendants also claim that the search was the product of an illegal investigative detention. The government contends that defendants do not have standing to object to the search of the car. The government also contends that the consent to search was valid and that defendants were not illegally detained.
Legal standards "Standing" or expectation of privacy in the car. This topic was addressed in U.S. v. Valdez Hocker, 333 F.3d 1206, 1208-09 (10th Cir. 2003):
Standing inquiries . . . "turn on the classic Fourth Amendment test: whether the individual manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognize that expectation as objectively reasonable." United States v. Allen, 235 F.3d 482, 489 (10th Cir. 2000) (quotation omitted).
To establish standing to challenge a car search, the defendant bears the burden of showing that he had a "legitimate possessory interest in or [a] lawful control over the car." Id. (quotation omitted) (alteration in original). Because the focus of the inquiry is on reasonable expectations, however, a defendant need not submit legal documentation showing a chain of lawful custody from the registered owner to himself. United States v. Rubio-Rivera, 917 F.2d 1271, 1275 (10th Cir. 1990). In resolving standing issues of this type, we consider important, but not determinative, the following factors: "(1) whether the defendant asserted ownership over the items seized from the vehicle; (2) whether the defendant testified to his expectation of privacy at the suppression hearing; and (3) whether the defendant presented any testimony at the suppression hearing that he had a legitimate possessory interest in the vehicle." Allen, 235 F.3d at 489.
. . . .
Where the proponent of a motion to suppress is the car's driver but not the registered owner, mere possession of the car and its keys is not sufficient to establish a legitimate possessory interest. Id.; United States v. Martinez, 983 F.2d 968, 973 (10th Cir. 1992). Rather, at a minimum, the proponent bears the burden of establishing "that he gained possession from the owner or someone with authority to grant possession. United States v. Arango, 912 F.2d 441, 445 (10th Cir. 1990). omitted).
It may be incorrect to label this element of a suppression motion as "standing." See Minnesota v. Carter, 525 U.S. 83, 87-88 (1998). Nevertheless, many appellate court decisions, including some from the Tenth Circuit, use that label.
Consent to search. Law enforcement officers may conduct a lawful warrantless search if there has been a valid consent to the search. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Before consent may be used as a justification for a search, two standards must be met: "`the government must proffer clear and positive testimony that consent was unequivocal and specific and freely and intelligently given . . . [and] must prove that this consent was given without implied or express duress or coercion.'" U.S. v. McRae, 81 F.3d 1528, 1537 (10th Cir. 1996) (quoting U.S. v. Angulo-Fernandez, 53 F.3d 1177, 1180 (10th Cir. 1995)). In determining whether the government has met its burden of proof, the court looks at the totality of the circumstances. U.S. v. Sanchez, 89 F.3d 715, 718-19 (10th Cir. 1996). "[A] `working knowledge' of the English language is all that is required for an encounter to be consensual." U.S. v. Manjarrez, 348 F.3d 881, 886 (10th Cir. 2003) cert. denied, 124 S.Ct. 1622 (2004).
In addition, under Illinois v. Rodriguez, 497 U.S. 177, 185-86 (1990), a search may be found constitutional if it is determined that an officer "would have had valid consent to search if the facts were as he reasonably believed them to be."U.S. v. Salinas-Cano, 959 F.2d 861, 865 (10th Cir. 1992) (quoting U.S. v. Whitfield, 939 F.2d 1071, 1074 (D.C. Cir. 1991)); see also, U.S. v. Guerrero, 374 F.3d 584 (8th Cir. 2004); U.S. v. Cedano-Medina, 366 F.3d 682 (8th Cir. 2004).
Investigative detention. An investigative detention must be temporary; it should not last longer than necessary to complete the purpose of the stop; and the investigative methods should be the least intrusive reasonably available to verify or dispel the officer's suspicion in a short period of time. Florida v. Royer, 460 U.S. 491, 500 (1983). "During a traffic stop . . ., a police officer is permitted to ask such questions, examine such documentation, and run such computer verifications as necessary to determine that the driver has a valid license and is entitled to operate the vehicle." U.S. v. Wood, 106 F.3d 942, 945 (10th Cir. 1997) (stop for speeding). "Questions about travel plans are routine and may be asked as a matter of course without exceeding the scope of a traffic stop." U.S. v. West, 219 F.3d 1171, 1176 (10th Cir. 2000). During the course of a traffic stop, further questioning and detention are allowed if the officer has an objectively reasonable and articulable suspicion that the driver is engaged in illegal activity or if the officer is given consent to lengthen the encounter. U.S. v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir. 1998). Having no proof of ownership of the vehicle or proof of authority to operate the vehicle and inconsistent statements regarding travel plans can contribute to a suspicion of illegal activity. Id.; see also,U.S. v. Fernandez, 18 F.3d 874, 879-80 (10th Cir. 1994).
Evidence
The court heard testimony from the officer who made the traffic stop, Mark Maschmeier. He stated that he stopped a red Dodge Neon traveling east on I-70 on August 1, 2004. Defendant Aguiluz was driving the car. Defendant Renteria was the only passenger. Maschmeier asked Aguiluz for his driver's license and registration. Aguiluz produced a Mexican driver's license and a State of Colorado vehicle registration and proof of insurance. The vehicle registration showed that the owner of the vehicle was "Jenyfer Avila Varela." Maschmeier asked who the passenger was and Aguiluz replied that he was a friend. Maschmeier asked the passenger for identification, and Renteria produced a Mexican identification card.
Aguiluz did not respond verbally to Maschmeier when he was asked for his license and registration or when Maschmeier explained the reason for the traffic stop. But, he did not appear confused about what Maschmeier was saying.
Maschmeier noticed that dates of birth were not listed on the license and identification he received. He asked Aguiluz for his date of birth and was told March 3, 1983. He asked Renteria for his date of birth. Renteria said he could not speak English.
Maschmeier asked Aguiluz about his travel plans. Aguiluz said they were going to Topeka to fix the glass, pointing to a cracked windshield on the car. He further answered that they were traveling from Pueblo, Colorado. Maschmeier asked if they were traveling from Pueblo to Topeka to get their windshield fixed. Aguiluz replied that they were looking for work, too.
Maschmeier returned to his patrol vehicle to run computer checks on the documentation he was given. There was a proper license tag on the car. There were no warrants detected on defendants. The car was not reported stolen.
Maschmeier returned to defendants' car and asked Aguiluz to step out and come to the back of the car. He complied. Then Maschmeier walked to the passenger side of the car and returned Renteria's identification. He asked Renteria where he and Aguiluz were going. Renteria said "Topeka" and pointed to the windshield, but also tried to relate that he could not speak English. At that point, Maschmeier returned the license and other documentation to Aguiluz waiting behind the car and asked again where he and Renteria were going and why. He replied that they going to Topeka to fix the glass and find work.
Maschmeier then told Aguiluz that he was free to go and motioned that he could leave. Aguiluz began to walk toward the driver's door of the car when Maschmeier asked, "by the way, do you have any illegal contraband in the car such as weapons, drugs or open containers?" Aguiluz turned around and acted as if he did not understand the question. Maschmeier repeated the question and Aguiluz again pointed to the windshield. Maschmeier asked the question again and this time Aguiluz said "No." Maschmeier then asked if he could look inside the car. Aguiluz again referred to fixing the "glass" or the windshield. Then, Maschmeier repeated his request and this time motioned by pointing to his eyes and then to the trunk of the car. Without saying anything, Aguiluz turned back to the car, retrieved the keys, walked back toward Maschmeier and opened the trunk. Maschmeier stated that he interpreted this as consent to the request to search the car. Maschmeier found bags containing methamphetamine in the trunk of the car underneath the spare tire.
After placing Aguiluz under arrest, Maschmeier looked in his wallet. The contents were mostly in Spanish. Maschmeier did not converse with Aguiluz or attempt to give him the Miranda warning. DEA Agent Elizabeth DuBoise-Marshall testified that she traveled to the holding facility to interview Aguiluz after his arrest. She asked Maschmeier if an interpreter was needed to speak to Aguiluz. Maschmeier replied negatively and said that Aguiluz seemed to understand English. However, when she attempted to interview Aguiluz, he said he did not speak English. According to the agent, when she said to Aguiluz that he spoke to Maschmeier, he shrugged and said, "No English."
Maschmeier testified that Aguiluz seemed quite nervous to him during the traffic stop. Maschmeier elaborated that Aguiluz's voice and hands were shaky. Aguiluz had a heavy accent. But, Maschmeier said he had no difficulty communicating with Aguiluz until he asked about contraband in the car and whether he could look in the vehicle. At that point, he believed that Aguiluz understood him, but was trying to change the subject or divert attention to the cracked windshield. He said he believed Aguiluz was trying to keep him from looking in the trunk of the car.
After he and Aguiluz were arrested, Renteria called a person named Francisco Avila in Colorado regarding the car. Perhaps as a result of this phone call, defendant Susana Avila-Agramon traveled to Kansas the next day. It has been alleged that she was attempting to retrieve the Dodge Neon, which had been placed under surveillance by law enforcement. She was arrested after she allegedly tried to start the vehicle. She is the same woman as the registered owner of the car. She told officers that she gave the car to an "Omar Marias" to go to a dance. Agent DuBoise-Marshall did not believe this story and thinks that Avila knew her co-defendants were in possession of the car.
Defendant Aguiluz (whose first name is "Omar") told officers that he received the car from an unknown female he met at a dance. Defendant Renteria told officers that he and Aguiluz had traveled in a Jeep Cherokee from Phoenix to Colorado when the Jeep broke down. They then traded the Jeep for the Dodge Neon which was supplied by a man named "Memo" who was accompanied by a woman named "Avila."
The traffic stop lasted for approximately 14 minutes before the alleged drug evidence was discovered. An officer arrived and served as backup to Maschmeier approximately one minute into the traffic stop. Maschmeier has had several years experience as a law enforcement officer. A videotape of the traffic stop has been admitted into evidence. There is no sound on the tape.
Analysis
We hold that defendants Aguiluz and Renteria have not demonstrated a reasonable expectation of privacy in the car in which they were riding at the time of the traffic stop. Neither defendant Aguiluz nor defendant Renteria has asserted ownership over the items seized from the vehicle. Neither one testified to his expectation of privacy at the suppression hearing. At the hearing, the only evidence supporting a claim of a legitimate possessory interest in the vehicle was the opinion testimony of Agent Duboise-Marshall. She testified that she thought defendant Avila, the registered owner of the car, knew that defendant Aguiluz and defendant Renteria were in possession of the car. The foundation for this opinion appears to be the circumstances surrounding Avila's apparent effort to retrieve the car and the agent's belief that what she was told by defendants Avila and Aguiluz was not truthful.
While the opinion may be a reasonable supposition, we do not believe it constitutes sufficient proof of a legitimate possessory interest in car. We acknowledge there are cases in which standing was found although the defendants did not testify and merely relied upon an officer's recitation of what the defendants had previously said. See, e.g., U.S. v. Angulo-Fernandez, 53 F.3d 1177, 1179 (10th Cir. 1995); U.S. v. Soto, 988 F.2d 1548, 1552-53 (10th Cir. 1993). In this instance, to our knowledge defendants have not told anyone or established with evidence that they obtained the car with the permission of the lawful owner. Therefore, we find that Aguiluz and Renteria do not have a reasonable expectation of privacy in the vehicle sufficient to object to a warrantless search of the vehicle. Renteria's position as a passenger in the car makes his claim to an expectation of privacy even less persuasive. U.S. v. Eylicio-Montoya, 70 F.3d 1158, 1162 (10th Cir. 1995).
Aguiluz and Renteria do have standing to contest the search as the fruit of their alleged illegal detention. See U.S. v. Deluca, 269 F.3d 1128, 1132 (10th Cir. 2001). To suppress evidence on this basis, Aguiluz and Renteria must show: 1) that the detention violated their Fourth Amendment rights; and 2) that there is a factual nexus between the illegal detention and the challenged evidence. Id. (quoting U.S. v. Nava-Ramirez, 210 F.3d 1128, 1131 (10th Cir. 2000)). If the government proves that the detention was not illegal either because there was a reasonable suspicion sufficient to hold Aguiluz and Renteria or that the detention was consensual, then suppression should not be ordered. See Hunnicutt, 135 F.3d at 1349. Of course, suppression is also improper if there is an inadequate link between the alleged illegal detention and the challenged evidence.
An investigative detention must be supported by an objectively reasonable suspicion of illegal activity based on the totality of the circumstances. U.S. v. Sokolow, 490 U.S. 1, 8 (1989). This is based upon the "perspective of the reasonable officer not the reasonable person." U.S. v. Quintana-Garcia, 343 F.3d 1266, 1270 (10th Cir. 2003). Officers may draw on their own experience and training to make inferences and deductions. Id. Deference is given to a trained law enforcement officer's ability to distinguish between innocent and suspicious circumstances.McRae, 81 F.3d at 1534. In this case, the officer who made the traffic stop saw an unusual level of nervousness manifested in the shaky voice and trembling hands of Aguiluz. Neither Aguiluz nor Renteria were the registered owners of the car. It seemed peculiar that Aguiluz said he was traveling to Topeka from Pueblo, Colorado to fix the windshield, although Maschmeier admitted that he did not know when the windshield was cracked. The reason for going to Topeka was later supplemented with the plan to look for work. Thus, the story seemed to change. There were food wrappers and drink containers in the car, which was consistent with the long drives often made by drug couriers. Of course, this is also consistent with long drives made for legal reasons. There was no sign of luggage, although Maschmeier had not looked in the trunk prior to allegedly receiving consent to search the car.
This is a close case. But, we believe the circumstances were sufficient to detain Aguiluz and Renteria to ask if they were carrying illegal contraband and if the officer could look in the vehicle. See U.S. v. Soto, 988 F.2d 1548, 1554-56 (10th Cir. 1993); U.S. v. Turner, 928 F.2d 956, 959 (10th Cir.)cert. denied, 502 U.S. 881 (1991); U.S. v. Arango, 912 F.2d 441, 446-47 (10th Cir. 1990) cert. denied, 499 U.S. 924 (1991).
We also find that there was a valid consent to search. It appears clear from the record that Aguiluz understood what Maschmeier was saying during the traffic stop. He did not display any confusion or misunderstanding through the course of the traffic stop until Maschmeier mentioned the topic of drugs. Then, Aguiluz attempted to evade the subject rather than answer the question, which is not unusual in the experience of the officer. This evasiveness itself seemed to demonstrate an understanding of the question. When Aguiluz was asked for consent to look in the car, he took action to facilitate the search. Maschmeier construed this as consent. "Consent may be inferred from actions as well as words." U.S. v. Hylton, 349 F.3d 781, 786 (4th Cir. 2003) cert. denied, 124 S.Ct. 2391 (2004); see also, U.S. v. Jones, 254 F.3d 692, 695 (8th Cir. 2001). This is a reasonable interpretation in our opinion. See U.S. v. Patten, 183 F.3d 1190, 1194-95 (10th Cir. 1999) (consent to allow search inside suitcase may be inferred from acquiescence in opening suitcase); U.S. v. Gleason, 25 F.3d 605, 607 (8th Cir.) cert. denied, 513 U.S. 911 (1994) (assistance in search of car supports inference of consent); U.S. v. Wilson, 895 F.2d 168, 170 (4th Cir. 1990) (raising arms in response to request for permission to pat down is evidence of consent); U.S. v. Griffin, 530 F.2d 739, 743 (7th Cir. 1976) (after consent to search had previously been denied, consent inferred from leaving door to apartment open and stepping back in response to second request to search). The fact that Maschmeier believed Aguiluz was being evasive or obtuse to avoid a search of the car does not persuade the court that his consent to search was involuntary. The consent may have been given reluctantly. Still, it was a free and voluntary act in our opinion because Aguiluz appeared to well understand English up to that point, and there was no evidence of cajoling, duress or coercion. In sum, we find that there was a free, voluntary and unequivocal consent to search in this case.
We further find that a reasonable officer in Maschmeier's position could believe that Aguiluz knew English well enough to make a free and voluntary consent to the request to search. This provides additional grounds for finding that the search did not violate the Constitution.
Finally, Renteria has not supplied evidence that he asked to leave or would have been able to leave in the car had he wished to do so. Therefore, defendant Renteria cannot demonstrate a nexus between his alleged illegal detention and the eventual discovery of the alleged methamphetamine. Deluca, 269 F.3d at 1132-35.
For the above-stated reasons, the motion to suppress shall be denied.
IT IS SO ORDERED.